Opinion
12736
Decided and Entered: June 19, 2003.
Appeal from a judgment of the County Court of Albany County (Rosen, J.), rendered January 3, 2001, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.
Eugene P. Devine, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
Paul A. Clyne, District Attorney, Albany (Bradley Sherman of counsel), for respondent.
Before: Cardona, P.J., Crew III, Peters, Spain and, Lahtinen, JJ.
MEMORANDUM AND ORDER
In accordance with a negotiated plea bargain, defendant pleaded guilty to the crime of criminal possession of a controlled substance in the fifth degree in satisfaction of a five-count indictment, and was sentenced, as a second felony offender, to a prison term of 2 to 4 years. Defendant appeals, contending that he received ineffective assistance of counsel as evidenced by counsel's failure to advise him of his right to challenge the credibility of the confidential informant by requesting an Aguilar/Spinelli hearing.
By his failure either to move to withdraw his guilty plea or to vacate the judgment of conviction, the issue of whether defendant received the effective assistance of counsel has not been preserved for our review (see People v. Johnson, 288 A.D.2d 501, 502). Were we to consider the issue, however, we would find it to be without merit. The failure of defense counsel to make a particular pretrial motion does not, by itself, establish ineffective legal assistance (see People v. Rivera, 71 N.Y.2d 705, 709; People v. Garnsey, 288 A.D.2d 761, 762, lv denied 97 N.Y.2d 754). Our review of the record discloses that defense counsel made appropriate pretrial motions and provided defendant with competent representation as evidenced, in particular, by his negotiation of a most favorable plea (see People v. Powell, 299 A.D.2d 574, 575).
Defendant's challenge to his guilty plea is similarly not preserved for our review, given the failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Johnson, 82 N.Y.2d 683, 685; People v. Mejias, 293 A.D.2d 819, lv denied 98 N.Y.2d 699). The issue is, in any event, clearly meritless as are the remaining issues raised herein.
Cardona, P.J., Peters, Spain and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.